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Clement v. Alegre

September 23, 2009


(Contra Costa County Super. Ct. No. C06-00611). Trial judge: Hon. Barry Baskin.

The opinion of the court was delivered by: Kline, P.J.



Twenty-three years ago, the Legislature enacted the Civil Discovery Act of 1986 (Code Civ. Proc., § 2016.010, et seq.)*fn1 (the Act), a comprehensive revision of pretrial discovery statutes, the central precept of which is that civil discovery be essentially self-executing. More than 10 years ago, Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 (Townsend) lamented the all too often interjection of ―ego and emotions of counsel and clients‖ into discovery disputes, warning that ―[l]ike Hotspur on the field of battle, counsel can become blinded by the combative nature of the proceeding and be rendered incapable of informally resolving a disagreement.*fn2 ‖ (Id. at p. 1436.) Townsend counseled that the ―informal resolution‖ of discovery disputes ―entails something more than bickering with [opposing counsel].‖ (Id. at p. 1439.) Rather, the statute ―requires that there be a serious effort at negotiation and informal resolution.‖ (Id. at p. 1438.)

This case illustrates once again the truth of Townsend's observations, as well as highlighting the lengths to which some counsel and clients will go to avoid providing discovery (in this case by responding to straightforward interrogatories with nitpicking and meritless objections), resulting in delaying proceedings, impeding the self-executing operation of discovery, and wasting the time of the court, the discovery referee, the opposing party, and his counsel.

Plaintiffs Michael H. Clement and Michael H. Clement Corp. (plaintiffs) appeal from the Contra Costa County Superior Court's imposition of $6,632.50 as discovery sanctions. The sanctions were awarded against plaintiffs for interposing objections to special interrogatories propounded by defendant and respondent Frank C. Alegre, which objections the discovery referee found to be ―unreasonable, evasive, lacking in legal merit and without justification.‖ We agree and shall affirm the sanctions order.


Plaintiffs sued defendant for, among other things, specific performance and unspecified damages in connection with a dispute arising out of the sale of real property by plaintiffs to defendant. (The substantive facts of the underlying action are not relevant to the merits of the issues raised on this appeal.)

On November 12, 2007, defendant Alegre served two identical sets of 23 special interrogatories on plaintiffs: one set to plaintiff Clement, the individual, and one set to plaintiff corporation.*fn3 The interrogatories requested information on damages, causation, and the existence of a loan commitment. Plaintiffs answered three of the interrogatories and interposed objections to twenty. As described by the referee, plaintiffs' objections were of two types:

―Special Interrogatory No. 1 requested a description of ‗all economic damages you claim to have sustained. . . .' Clement objected that the question was ‗vague and ambiguous'. Clement's contention that the term ‗economic damages' is vague is based on propounding party's failure to specifically refer to Civil Code section 1431.2, [subdivision] (b)(1)*fn4 which defines economic damages. Thus, reasons Clement, ‗Responding Party reasonably construes the failure to adopt this definition as expressing Propounding Party's intention to define economic damages in a manner different than as provided in California Civil Code Section [1431. 2, subdivision] (b)(1).' Clement goes on to supply a restricted definition of his own, to wit: the lost profit from the potential sale of the property to a third party buyer. Thus limited, he answers that he is aware of none.‖

―Special Interrogatory No. 2 asks: ‗Please state the amount of such damages as identified in interrogatory number 1.' Clement's objections this time were (1) that this Special Interrogatory violates [section] 2030.060[, subdivision] (d) because it is not full and complete in itself, requiring, as it does, reference to the answer to an earlier interrogatory in the same set. He brands the reference to the answer to an earlier question as reference to ‗other materials' in order to answer the question, citing Catanese v. Superior Court (1996) 46 Cal.App.4th 1159, 1164 [(Catanese)] .*fn5 ‖ Plaintiff Clement also stated that he did not have to answer the interrogatory, because it would deny him 30 days to respond, as interrogatory No. 2 was a follow-up question that referred to the answer to interrogatory No. 1, and there could be no answer to interrogatory No. 1 in existence until the response to interrogatory No. 1 was rendered. The 30 days to answer interrogatory No. 2 would start after the answer to interrogatory 1. Finally, Clement stated that he would meet and confer in good faith with defendant to resolve any dispute, without the need for a motion. However, he also stated no response to a meet and confer communications could be given without ―reasonable time and opportunity to consult with [his] attorney.‖

The objection to the term ―economic damages‖ as vague and ambiguous was interposed to interrogatory Nos. 1 and 6. The objection that the interrogatories violated section 2030.060, subdivision (d) because each was not ―full and complete in itself‖ was interposed to interrogatory Nos. 2 through 5, 7 through 16, 18, 20, 22 and 23.

The parties engaged in a series of ―meet and confer‖ letters. (See §§ 2030.300, subd. (b); 2016.040.) Upon receiving plaintiffs' objections, defendant's counsel, Steven B. Piser, pointed out by letter dated January 5, 2008, that Clement himself had quoted Civil Code section 1431.2, subdivision (b)(1) in his objection and characterized it as the ―generally accepted definition‖ for ― ‗economic damages.' ‖ Defendant's counsel then reiterated that that was the information sought. With respect to plaintiffs' objections that each interrogatory was not ―full and complete in and of itself‖ (§ 2030.060, subd. (d)), Piser distinguished Catanese, supra, 46 Cal.App.4th 1159, argued that each interrogatory was full and complete in and of itself, and explained with respect to interrogatory No. 2, ―[t]he fact that the question asks for a quantification [of] damages that were requested to be described in an earlier interrogatory does not make it incomplete. . . . The interrogatory merely asks for the amount of damages your client is claiming as a result of Mr. Alegre's alleged breach of any agreement between your clients and him.‖ Counsel made a similar argument for each of the interrogatories challenged on this basis.

Plaintiffs' counsel, Samuel E. Goldstein, responded on January 16, 2008, suggesting that the interrogatories be withdrawn and replacement discovery, eliminating the concerns stated, be served on plaintiffs. Goldstein reiterated that the definition of ―economic damages‖ was vague and suggested that defendant's counsel should redraft the interrogatories to provide a definition of the term. As to the balance, Goldstein stated that although the ―interrogatories do not create the ―immense burden noted by the Catanese Court, they do violate the code.‖

Piser responded on January 18, 2008, reiterating defendant's position, that the interrogatories were full and complete in and of themselves and that the term ―economic damages‖ was clear. He notified plaintiffs that he would be filing a motion to compel and for sanctions. He again advised that the interrogatories contemplated a broad definition of the term ―economic damages,‖ in accordance with the statutory definition plaintiffs had cited. Attorney Goldstein responded via a faxed letter on January 23, 2008, stating that plaintiffs were willing to accept the revised and more expansive definition of the term ―economic damages‖ and would respond within 30 days of a letter providing a written definition of the term. He also reiterated plaintiffs' demand that defendants serve replacement special interrogatories that ―eliminate improper incorporation by reference of other answers.‖

On January 29, 2008, defendant moved to compel further responses to the special interrogatories, to strike objections, and for sanctions against plaintiff corporation and attorney Goldstein. (Defendant had already moved in late December to compel answers and for sanctions against Clement the individual (as distinct from the corporation) on grounds of his failure to respond to the special interrogatories. Clement responded on December 24, 2007, raising the same objections as had the corporation.

The matter was heard by discovery referee, Laurence D. Kay, on August 14, 2008, nine months after the interrogatories had been propounded. On August 20, 2008, the referee found, citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783, that plaintiffs had ―deliberately misconstrued the question‖ insofar as they contended the phrase ―economic damages‖ was too vague. He further found with respect to plaintiffs' claim that an interrogatory that referenced a prior interrogatory was not full and complete in itself, that the case cited by plaintiffs was ―inapposite and the objection frivolous.‖ The referee determined ―the objections and each of them ...

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